| CITATION | 2007 Indlaw DEL 2579, 2007 (2) ILR(Del) 1329 |
| DATE OF JUDGEMENT | 3rd October, 2007 |
| COURT | High Court of Delhi |
| APPELLANT | Masroor Ahmed |
| RESPONDENT | State (NCT of Delhi) & Another |
| Bench | Badar Durrez Ahmed, J. |
INTRODUCTION-
In The Masroor Ahmed vs. State (NCT of Delhi) case, the Delhi High Court clarified the various modes for dissolution of a marriage under Muslim law. The key words in Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, according to the Honourable Court, are “notwithstanding any customs or usage to the contrary, the rule of decision in cases where the parties are Muslims shall be Muslim personal law (Shariat)” and “notwithstanding any customs or usage to the contrary.” This clause mandates that Muslim personal law be applied, regardless of any opposing customs or usage, by any court hearing any matter pertaining to, among other things, the dissolution of a marriage and where the parties are Muslims.
FACTS OF THE CASE-
- The complainant, Aisha Anjum, made a written complaint to the police on December 12, 2006. She stated that her marriage was solemnised with the petitioner in accordance with Muslim rites. She further stated that out of this marital relationship a daughter was born to her. She alleged that the petitioner and his family members threw her out of the house on account of non-fulfilment of dowry demands for which she had already complained to the crime against women cell.
- After filing a case for the restoration of conjugal rights, it was claimed that the petitioner left the court and traveled to their marital home with her husband. It is further alleged in the written complaint that after she returned to her matrimonial home, her husband raped her up until April 19, 2006, as a result of her learning later that he had already given her talaq earlier and that he had lied in court about her status as his wife, on the basis of which he had taken her home.
- Furthermore, it is claimed that on April 19, 2006, a second nikah was performed, which was discovered only after she acquired a second copy of the nikahnama. She claimed that because the petitioner wasn’t her husband at the time, they had illicit relations. She emphasized that she would not have given her consent if she had known the truth at the time. She therefore requested that legal action against the petitioner and other accused persons be taken under sections 376/34 IPC.
- A second nikah was performed between the petitioner and the complainant on April 19, 2006, as stated in the FIR. The petitioner claims that the second nikah was required because, following the settlement of 13.4.2006, his brother-in-law reminded him that he had already divorced the complainant through a triple talaq in October 2005. In order to avoid any appearance of illegitimacy in his marital status, the petitioner allegedly sought a mufti’s opinion on April 16, 2006.
- On April 17, 2006, the mufti allegedly issued a fatwa stating that three talaqs pronounced in a single sitting would be considered one talaq-e-rajai. As a result, the petitioner could have returned the complainant within the allotted three-month period under the iddat. The petitioner and complainant could only remarry after a new nikah was performed because that time period had passed.
- On April 13, 2006, the complainant and petitioner returned from court to their marital residence. The following day, April 13, 2006, she returned to the marital residence. The petitioner pronounced talaq (again) on August 28, 2006, as there was disagreement between them once more. The petitioner left the marital residence on 30.8.2006. She’s lived at her parents’ house ever since.
- She complained to the crime against women cell on September 6, 2006. She also claims that during the investigation it was discovered that the petitioner had given her talaq earlier (in October 2005). She did, however, not file a written complaint until 12.12.2006 regarding the alleged rape that took place between 13.4.2006 and 19.4.2006. On the same day (12.12.2006), a FIR was filed under section 376 of the IPC.
ISSUES RAISED-
There are many issues that have an impact on concepts of Islamic law.
As follows:
(1) Is a triple talaq legal? What are its effects?
(2) Is a talaq delivered in rage enough to end a marriage?
(3) What are the repercussions of not telling the wife about the talaq?
(4) Was the allegedly signed talaq of October 2005 legitimate?
(5) What resulted from the second nikah on April 19, 2006?
THE ANSWERS TO THE FIVE QUESTIONS-:
- Is a triple talaq legal? What are its effects?
It is not even considered to be a valid divorce by Shia schools. I hold that a triple talaq which is talaq-e-bidaat, even for Sunni Muslims be regarded as one revocable.
(2) Is a talaq delivered in rage enough to end a marriage?
If a talaq is pronounced in extreme anger where the husband has lost control of himself it would not be effective or valid.
(3) What are the repercussions of not telling the wife about the talaq?
If the pronouncement of talaq is communicated to the wife, the talaq shall take effect on the date it is so communicated. However, if it is not communicated at all the talaq would not take effect.
(4) Was the allegedly signed talaq of October 2005 legitimate?
No. First off, it was delivered, if at all, in a furious rage. Second, it was never disclosed to the complainant, at least not during the pertinent time frame (i.e., up until or even after 13.04.2006). Thirdly, neither before nor after the alleged declaration of talaq in October 2005, there was no attempt at reconciliation in the manner recommended by the Quran. Therefore, the offence of rape is not made out even on the basis of allegations contained in the complaint.
(5) What resulted from the second nikah on April 19, 2006?
It was not necessary. Since the marriage was subsisting, the second nikah between them would be of no effect. However, had the purported talaq of October, 2005 been valid, it would have operated as a single revocable talaq and it would have been permissible for the couple to re-marry. In that case, the second nikah would have been effective and valid. And, then, the presumption of consent just prior to the marriage would be available to the petitioner. But, we need not labour on that aspect as the talaq of October, 2005 itself was invalid and their first marriage subsisted.
LOWER COURT DECISION-:
- Petitioner’s bail application was dismissed by the learned Additional Sessions Judge on 20.12.2006 holding that the petitioner had not disclosed the factum of talaq, either to the complainant or to the court, in his suit for restitution of conjugal rights. It was further held that—
“Pronouncement of triple ‘talak’ amounts to talaq-ul-Biddat which became irrevocable and it does not lie in the mouth of the applicant to say that the complainant was his wife. In cases of remarriage, there must first be an intermediate marriage to a different person, followed by the consummation of the marriage, a divorce, and then the applicant can wed the complainant. Therefore, the second marriage on April 19, 2006, in no way contradicts the parties’ respective religious beliefs. The complainant’s consent, which she gave between April 13, 2006, and April 19, 2006, was tainted and cannot be characterized as being freely given by her.
- The alleged talaq of October 2005 was invalid because it lacked the necessary elements of proclamation, communication, and attempt at reconciliation. Throughout the pertinent period (i.e., from 13.04.2006 to 19.04.2006), the petitioner and the complainant continued to live together as husband and wife. The exception in section 375 IPC comes into play, negating the need to prove rape as an offense.
JUDGEMENT-
The section 376 IPC FIR No. 817/2006 that was filed at Preet Vihar Police Station has been quashed. Additionally, all ongoing legal actions resulting from the aforementioned FIR are quashed. As a result, the bail application no. 4746/2006 has been disposed of and is now infructuous. The surety is released. This petition is approved.
CONCLUSION:
The aforementioned discussion highlights the fact that, despite the fact that judicial opinion is generally biased in favor of Muslim women’s welfare, there have been many inconsistent rulings. In fact, a Muslim woman who is married always worries that her husband will decide to get a divorce from her. In addition to triple talaq, the Halala procedure is disrespectful to Muslim women’s dignity and interferes with their right to life, personal liberty, and the ability to live with dignity.
REFERENCES-
This Article is written by Aastha Srivastava student of DES Shri Navalmal Firodia Law College, Pune; Intern at Legal Vidhiya.
